THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI SANJAY KUMAR
WRIT PETITION Nos. 1873 OF 2015
01-05-2015
The A.P. State Council of Higher Education rep., by its Secretary (FAC),
Hyderabad...Petitioner
The Union of India, rep., by Ministry of Law & Legislation and Company Affairs,
Central Secretariat Buildings, New Delhi & four others....Respondents
Counsel for petitioner : Advocate General (A.P.)
Counsel for respondent No.1: Sri B. Narayana Reddy (Asst. Solicitor General)
Counsel for respondents 2&3: Sri E. Madan Mohan
Counsel for respondents 4&5: Advocate General (TG)
<GIST:
>HEAD NOTE:
? Cases referred
1. (2006) 1 SCC 442 = AIR 2006 SC 661
2. (2014) 12 SCC 696
3. AIR 1963 SC 853
4. AIR 1970 SC 1446
5. (2006) 5 SCC 330
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.1873 & 2882 of 2015
Date: 01.05.2015
In W.P.No.1873 of 2015:
Between
The A.P. State Council of Higher Education (A statutory
Body pursuant to Legislation vide Act 16/1988), rep. by
its Secretary (FAC), 1st Floor, Opposite to Mahaveer Hospital,
Mahaveer Marg, Masab Tank, Hyderabad-500028.
Petitioner
And
1. The Union of India, rep. by Ministry of Law & Legislation
and Company Affairs, Central Secretariat Buildings,
New Delhi., and four others.
Respondents
In W.P.No.2882 of 2015:
Between
1. The State of Telangana, rep. by its Special Secretary,
GA (States Reorganization) Department, Government of
Telangana, Secretariat, Hyderabad, and another.
Petitioners
And
1. Union of India, rep. by its Secretary, Ministry of Home
Affairs (CS Division), North Block, Central Secretariat,
New Delhi., and three others.
Respondents
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.1873 & 2882 of 2015
COMMON ORDER: (Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
First mentioned writ petition (W.P. No.1873 of 2015)
(hereinafter referred to as first writ petition) has been filed by the A.P.
State Council of Higher Education which is a statutory body formed and
constituted under the Act called the Andhra Pradesh State Council of
Higher Education Act, 1988 (hereinafter referred to as Act, 1988)
against the Union of India, the State Bank of Hyderabad, the State of
Telangana and the Telangana State Council of Higher Education. Second
one (W.P.No.2882 of 2015) has been filed subsequently by the State of
Telangana against the Union of India, the State of Andhra Pradesh and
the A.P. State Council of Higher Education (in short, APSC).
2. The first writ petition (W.P.No.1873 of 2015) has been filed
seeking relief against the Bank who decided to stop the operation of
Bank account maintained by APSC. There would not have been any
difficulty to decide this matter on fact as well as law, had there been no
second writ petition (W.P.No.2882 of 2015) filed by the Telangana State
Council of Higher Education (hereinafter referred to as TSC). Therefore,
both the writ petitions are consolidated and heard out analogously.
3. The factual aspects of both the matters are more or less the
same, and the same is summarized as follows.
The APSC came into being on publication of Act, 1988 in the
A.P. Gazette on 21.04.1988, followed by G.O.Ms.No.199, Education
Department, dated 17.05.1988 under the provision of Section 3 of Act
1988. As such, it is a separate statutory and autonomous body having
perpetual seal and succession; and it can sue and be sued. By and
under the aforesaid Act, 1988, this Council has the exclusive authority
for conducting various common entrance examination tests namely
(i) Engineering and Medical Common Entrance Test (EAMCET) for
admission of students into Engineering, Medicine and Agriculture,
Pharmacy (ii) Integrated Common Entrance Test (ICET) for admission of
students into MBA and MCA (iii) Education Common Entrance Test
(EDCET) for admission of students into B.Ed. (Bachelor of Education)
(iv) Engineering Common Entrance Test (ECET) for admission of
Diploma holders and B.Sc., students into Engineering and Pharmacy
(v) Physical Education Common Entrance Test (PECET) for admission of
students into Physical Education Programmes (vi) Law Common
Entrance Test (LAWCET) for admission of students into 3 year and
5 year Law Course (vii) Post Graduate Law Common Entrance Test
(PGLCET) for admission of students into LLM (viii) Post Graduate
Common Entrance Test (PGCET) for admission of students into M.Tech.
and M. Pharm.
4. On 20.01.2015, by a written communication, State Bank of
Hyderabad informed that they have decided not to allow the APSC to
operate the Saving Bank A/c. Nos.521889272278 and 62009828659
maintained in Shantinagar Branch. By the said communication, it is
informed that the TSC has objected to such operation. It is asserted by
APSC that this decision of the Bank is high-handed, arbitrary and illegal.
The Bank has no authority to refuse to operate the Bank account as
there has been no garnishee order or order of the appropriate Court
restraining operation of the Bank account. It is alleged that the claim
and contention of the TSC is untenable under law.
5. In the second writ petition (W.P.No.2882 of 2015) it has
been stated that the then State of Andhra Pradesh has been bifurcated
into two States namely, State of Andhra Pradesh and State of Telangana
under the Andhra Pradesh Reorganization Act, 2014 (hereinafter referred
to as Act, 2014). Under Sections 3 & 4 of Act, 2014, with effect from the
appointed day i.e., 02.06.2014, these two States are functioning as
separate and independent States. The Act, 2014 provides for taking
various measures to effectuate smooth functioning of the two
independent States. One of the measures is the method of functioning of
the existing State institutions on and from the appointed day. The status
and functioning of the institutions mentioned in the tenth schedule of
the Act are governed by Section 75, which is under Part-II of Act, 2014.
In terms of this provision, the institutions specified in the tenth schedule
located in the State of Telangana or the State of Andhra Pradesh, as the
case may be, should continue to provide facilities to the people of the
other State i.e., the State of Andhra Pradesh from the State of Telangana
and vice versa in accordance with the provisions of this Act. Section
75 of the Act, 2014 does not provide for apportionment of assets, rights
and liabilities of the institutions between the two successor States.
These institutions specified in the tenth schedule have to work
independently in their own sphere within four corners of the law of the
land.
6. It is the settled position of law that the institutions located in
the successor States are governed by the law of the successor State-laws
of the land namely, principle of land, known as doctrine of lex situs.
7. Under Article 246 (2) & (3) of the Constitution of India, the
State Legislatures are competent to make laws in respect of their territory
covered by the entries in List-II & III of the 7th Schedule of the
Constitution. Therefore, in terms of Section 75 of Act, 2014, the
specified institutions under the tenth schedule are governed by the laws
of the respective States where they are located. Having regard to the
aforesaid legal position, the institutions specified in the tenth schedule
located in Telangana are governed by the law of the State of Telangana.
8. In exercise of the power under Section 101 of Act, 2014,
State of Telangana adopted Act, 1988, with slight modifications vide
G.O.Ms.No.5, Higher Education (UE) Department, dated 2.8.2014, so as
to govern this institution specified at Item No.27 of the tenth schedule.
Thus, the State of Andhra Pradesh has no authority to interfere in the
functioning of the organizations specified in the tenth schedule which are
located in Telangana State territory. In view of the above, the then
existing body constituted by the then State of Andhra Pradesh, prior to
formation of the State of Telangana, has no authority to function and
administer an institution located in the State of Telangana and the said
body automatically ceases to exist and accordingly, the then APSC has
no authority in respect of the institution specified at Item No.27 of the
tenth schedule. The office of the institution of petitioner No.2, formerly
known as APSC, is now situated in the State of Telangana at Hyderabad.
Therefore, the law enacted by the State of Telangana alone, necessarily,
has application for administration of the institution. Consequently, any
action taken or order now passed by the erstwhile body of the institution
specified at Item No.27 of tenth schedule is without jurisdiction and
would be ultra vires.
9. The APSC, at the instance of the State of Andhra Pradesh, is
now asserting its power and authority and physically occupying the
premises without any authority of law. The APSC is not entitled to
operate the bank accounts or withdraw any amount. Notwithstanding
the aforesaid legal status, even after 2nd June, 2014, the APSC has
withdrawn considerable amounts from the State Bank of Hyderabad,
Shantinagar Branch, in respect of the above two saving bank accounts.
As such, the petitioner No.2 wrote a letter to the State Bank of
Hyderabad and Andhra Bank for freezing of the said accounts.
Accordingly, a decision was taken by the Bank and rightly so.
10. In the second writ petition (W.P.No.2882 of 2015), in the
aforesaid background, declaratory reliefs on the above lines have been
sought by the State of Telangana, being one of the petitioner, against the
State of Andhra Pradesh, which is one of the respondents.
11. Counter-affidavit has been filed to this writ petition
(W.P.No.2882 of 2015) by the APSC taking a legal objection that the
reliefs claimed by the State of Telangana against the State of Andhra
Pradesh cannot be maintained by way of this writ petition in view of the
provisions of Article 131 of the Constitution of India. That apart, in the
counter-affidavit, it is stated that on bifurcation of the State on
commencement of Act, 2014, the status of APSC, as claimed by the writ
petitioner, is disputed and denied. According to the APSC, it is fully
entitled to function as such, operate the existing Bank accounts as was
being done before the bifurcation and the provisions of Section 75 of Act,
2014 have no legal impact, since Hyderabad is a common capital for both
the States.
12. The learned Advocate General for the State of Andhra
Pradesh, while submitting on the question of maintainability of the
second writ petition (W.P.No.2882 of 2015), wherein the State of
Telangana is the petitioner and the State of Andhra Pradesh is a
respondent, contends that the relief Nos.3 & 4 claimed are not at all
entertainable and further adjudicatable by this Court as the same relate
to the claim and contention and rival contentions between the two States
with regard to assets and properties.
13. Article 131 of the Constitution of India is the only remedy
and the forum mentioned therein is the only forum for adjudication of
such disputes. While referring to Article 300 of the Constitution of India,
he says that both the States are sui juris and they can sue and be sued,
the meaning and expression of the State as mentioned in Article 131 is
not synonymous with that as mentioned in Article 12 or 226 of the
Constitution of India. The phraseology, namely, to the exclusion of any
other Court mentioned in Article 131 is clear enough to indicate that this
Court has no jurisdiction. In support of his submission, he has placed
reliance on the decisions of the Supreme Court in Tashi Delek Gaming
Solutions Limited v. State of Karnataka and State of Tamil Nadu v. State
of Kerala .
14. On the point of maintainability, the learned Advocate
General for the State of Telangana submits that the bar under Article
131 will be applicable when one State sues exclusively the Union of India
or any other State. If there is any involvement of third parties in any
action, the above bar is not at all applicable, like the present one. In
support of his submission on this point, he has placed reliance on the
judgments of the Supreme Court reported in Tashi Delek Gaming
Solutions Limited v. State of Karnataka (1 supra), Anant Prasad
Lakshminiwas Ganeriwal v. State of A.P. , The State of Bihar v. The Union
of India and Nautam Prakash DGSVC, VADTAL v. K.K. Thakkar .
15. However, on merits, the learned Advocate General for the
State of Andhra Pradesh submits that, if the above two reliefs are
excluded, this writ petition can be maintained in that case and it is
possible for this Court to decide the matter.
16. The learned Advocate General for the State of Andhra
Pradesh submits on merits after placing the fact that the State of
Telangana and the TSC are aware of the details of the funds, if any, the
petitioner Council is also very much aware that the funds are in tact in
the form of Fixed Deposits in the Banks located in Hyderabad only. In
this regard, reference is made to the letter dated 5.9.2014 addressed by
the Telangana Government to the Government of Andhra Pradesh
seeking bifurcation of the staff and available funds. Act of adaptation by
G.O.Ms.No.5 dated 2.8.2014 to G.O.Ms.No.33 dated 31.12.2014 would
amount to amendment of the Act, 1988. Hence, such amendment is not
valid in law for the reason that APSC still remains as an independent
statutory body, which is functioning at the common capital of Hyderabad
till it is bifurcated as per the procedure laid down under Section 75 of
Act, 2014. He contends that the Telangana Government has adopted
Act, 1988 and Regulations issued thereunder under Section 101 of Act,
2014, to create the 5th respondent Council vide G.O.Ms.No.5 dated
2.8.2014 with effect from 2.6.2014 for the purpose of facilitating its
operation in relation to the State of Telangana and not otherwise. The
very adaptation of the Act under Section 101 of Act, 2014 is not
applicable to those institutions specified in the tenth schedule under
Section 75 of Act, 2014 till the procedure contemplated under Section
75 of Act, 2014, which mandates either the continuation of the
institutions for the people of both the States beyond one year or deletion
of such institutions from the tenth schedule depends upon the decision
of the 1st respondent Government and the same is binding on both the
Governments. The procedure contemplated under Act, 2014 for ninth
schedule institutions is distinct and different and the same cannot be
compared with tenth schedule institutions. The adaptation of the APSC,
which is listed in the tenth schedule, creating a parallel one being TSC
invoking Section 101 of Act, 2014 is contrary to the procedure laid down
under Section 75 of Act, 2014.
17. He contends further that APSC is located in a common
capital for both the States of Andhra Pradesh and Telangana for a period
not exceeding ten years, as per Section 5 of Act, 2014. Therefore,
Telangana Government, having created TSC, cannot now claim territorial
jurisdiction exclusively over APSC, which is a specified institution in the
tenth schedule under Section 75 of Act, 2014, without going through the
due process mandated under the said Act. Thus, the words located in
that State mentioned in Section 75 of Act, 2014 means to facilitate the
services to the people of other States by the institutions specified in the
tenth schedule.
18. The question of TSC becoming a successor organization to
the petitioner Council would only happen as and when APSC is
bifurcated as per law laid down in Sections 75 & 79 of Act, 2014. Thus,
as long as APSC is listed in the tenth schedule under Section 75 of Act,
2014, the question of TSC taking its place as a successor organization
does not arise since Section 101 of Act, 2014 is permissive in general,
but adaptation of the institution specified in the tenth schedule under
Section 75 of the aforesaid Act, 2014 i.e., lock, stock and barrel, is
impermissible and void in law.
19. The Circular dated 30.10.2014 addressed to the various
Banks requesting to stop withdrawals cannot be made applicable to
tenth schedule institutions for the reason that the Act, 2014 does not
provide any procedure for division of funds of tenth schedule
institutions. Therefore, applying the said Circular and freezing the
accounts of the petitioner Council by the 2nd & 3rd respondent Banks is
totally erroneous and illegal. Therefore, the question of disputes of
funds between the States of Telangana and Andhra Pradesh does not and
cannot arise, without bifurcation of the APSC. Therefore, freezing of the
accounts based on a letter written by the Bank on 8.1.2015 under the
guise of the Circular dated 30.10.2014 is totally illegal and amounts to a
collusive act of the Bank with the State of Telangana.
20. The learned Advocate General appearing for the State of
Telangana submits that APSC, Hyderabad is an institution constituted
under sub-section (1) of Section 3 of Act, 1988 and the said institution
was defined under clause (e) of Section 2 of Act, 1988. It is submitted
that sub-section (3) of Section 3 of Act, 1988 provides that the
headquarters of the State Council shall be located at Hyderabad. The
said institution was constituted with an object to advise the State
Government and set standards of Higher Education, etc., as set out in
the objectives of Act, 1988. The said Council has been functioning since
1988 onwards in Hyderabad and it has no other sub-offices or branch
offices in the then existing State of Andhra Pradesh, except Hyderabad.
The said Council was specified and included in the tenth schedule of the
Act under Section 75 of Act, 2014. The institutions listed in the tenth
schedule shall continue to provide facilities to the people of other State
even after bifurcation of the State on certain terms and conditions as
may be agreed between the two States. There is no partition provided in
respect of the institutions specified in the tenth schedule except
providing service. Undisputedly, since the institution is located in
Hyderabad, the institution will be governed by the law of the land, known
as the doctrine of lex situs. In terms of the doctrine of lex situs, all the
rights over or in relation to any institutions are governed by the law of
that State where the said institution is located. In this context, he
referred to a decision of the Supreme Court in case of Anant Prasad
Lakshminiwas Ganeriwal v. State of A.P. (3 supra). The territory of
Hyderabad District is included in the State of Telangana under Section 3
of Act, 2014. The State of Andhra Pradesh is entitled to locate its
headquarters in the Hyderabad city for a period not exceeding ten years,
but it is not given any right over the territory or its law making power or
administration. Section 75 of Act, 2014 clearly states that the
institutions located in that State would extend the services to other State
on such terms and conditions of agreement. The State of Telangana was
formed with effect from 2.6.2014. Thereafter, Act, 1988 was adapted in
the name and style of Telangana State Council of Higher Education Act
under Section 101 of Act, 2014 vide G.O.Ms.No.5 dated 2.8.2014.
Pursuant to the said adaptation, a new Council was constituted for Item
No.27 of the tenth schedule, known as the Telangana State Council of
Higher Education. In view of the same, the State of Andhra Pradesh or
its Higher Education Council has no authority over the said institution.
Thus, the State of Telangana and its enacted law will have application
over the said institution. Act, 2014 provided for the ownership of the
institution on territorial basis located in the respective territory and there
is no division of assets and liabilities of the institutions listed in the tenth
schedule. He submits further that under Sections 68 & 71 of Act, 2014,
even the State Government Companies and Corporations are allowed to
continue on territorial basis as owners except State headquarters which
are existing State-wide operations.
21. He concluded that neither the State of Andhra Pradesh nor
the Council constituted by the erstwhile State of Andhra Pradesh can
have any control, authority or function over the State Council and
operate the Bank accounts of the A.P. State Council of Higher Education
located in Hyderabad.
22. After considering the submissions and contentions of both
the parties, we feel that it is incumbent upon us to decide the
preliminary objection raised by the learned Advocate General for the
State of Andhra Pradesh whether the reliefs, being prayer Nos.3 & 4, in
W.P.No.2882 of 2015 can be entertained by this Court or not. In other
words, whether the provisions of Article 131 of the Constitution of India,
which reads as follows, is a bar or not?
131. Original jurisdiction of the Supreme Court:- Subject to the
provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any
dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one
side and one or more other States on the other; or
(c) between two or more States,
if and insofar as the dispute involves any question (whether of law or
fact) on which the existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute
arising out of any treaty, agreement, covenant, engagement, sanad or
other similar instrument which, having been entered into or executed
before the commencement of this Constitution, continues in
operation after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.
23. On a plain reading of Article 131 of the Constitution of India,
it appears, without any doubt, that the Supreme Court has original
jurisdiction to entertain a lis with regard to the disputes between the
Government of India on one hand and one or more States on the other,
or between the Government of India and any State or States on one side
and one or more other States on the other, or between two States and
this dispute relates to any question whether on fact or law which the
existence or extent of a legal right of the aforementioned disputants
depends.
24. Therefore, it postulates the legal right of the two parties
mentioned above and not that of any other third party. In other words, a
fight between two States to establish any legal right based on fact and
law can be decided by the Supreme Court alone and in that situation, it
clearly ousts the jurisdiction of other Courts.
25. According to us, in order to apply the aforesaid
Constitutional bar, the fact of the lis and claim and contention in
substance, involved therein must confine to the two States exclusively,
not involving nor referring to any third party. As it is rightly argued by
the learned A.G. for the State of Telangana, the word State mentioned
in Article 131 of the Constitution of India is to be construed in strict
sense viz., sovereign State, not that of as mentioned in wider sense in
Article 12 of the Constitution of India.
26. On a reading of both the writ petitions, it appears to us that
the APSC is a separate legal entity and it has been constituted by and
under the Act, 1988 and by this writ petition, the aforesaid Council has
claimed funds lying in the Bank in its name. It appears that the TSC is
also a separate legal entity. Therefore, these mutual but rival rights and
claims are really sought to be established merely by both the two
separate statutory bodies viz., of the State of Andhra Pradesh and the
State of Telangana after being created by making appropriate legislation
either by original or by way of adaptation of original.
27. Hence, we do not think that these two writ petitions are in
the real sense a fight between two independent States as contemplated
under Article 131 of the Constitution of India.
28. As far as the reliefs mentioned in 3 & 4 in W.P.No.2882 of
2015 are concerned, the same are merely surplusage and can safely be
excluded. We, therefore, delete the same. Consequently, we hold that
the later writ petition is also maintainable.
29. We now proceed to decide the claims and contentions
on merit.
30. In these two matters, there is no dispute as regards factual
aspects and the same are briefly stated hereinafter. The APSC came into
existence by and under the Act, 1988 by virtue of Section 3 of this Act.
The said Section is set out hereunder:
3. Constitution of State Council of Higher Education:-
(1) The Government may, by notification, and with effect on
and from such date as may be specified in this behalf, constitute a
State Council for the purpose of this Act to be called the Andhra
Pradesh State Council of Higher Education.
(2) (a) The State Council shall be a body corporate having
perpetual succession and a common seal and shall sue and be sued by
the said corporate name.
(b) In all suits and other legal proceedings by or against the
State Council the proceedings shall be signed and verified by the
Secretary and all processes in such suits and proceedings shall be
issued to and served on the Secretary.
(3) The Headquarters of the State Council shall be located
at Hyderabad.
31. Thus, it is clear that this Council is a statutory body and it
has an independent legal character from that of the Government
functioning. It seems to us that the statutory body was intended to be
created to give autonomy with regard to maintaining, promoting and
improving standards of higher education. The composition of the
Council is provided under Section 4 of the Act, 1988. The said Section
reads as follows:
4. Composition of the State Council:- (1) The State Council shall
consist of the following members, namely:
I. Full Time Members:
(i) a Chairman; and
(ii) a Vice-Chairman,
to be appointed by the Government from among eminent educationists.
II. Ex-Officio Members:
(i) the Secretary to Government, Education Department;
(ii) the Secretary to Government, Finance Department;
(iii) the Secretary to Government, Labour, Employment and Technical
Education:
(iv) the Secretary or any other officer of the University Grants
Commission not below the rank of a Joint Secretary nominated by the
Chairman, University Grants Commission.
III. Other Members:
(i) four persons to be appointed by the Government from among
eminent educationists;
(ii) one person who shall represent the industry to be appointed by the
Government:
(iii) three persons of whom one shall be a technical expert, to be
nominated by the State Government.
(2) Every appointment under this section shall take effect from the date
on which it is notified by the Government.
32. It further appears that this Council under the Act has to get
grants from the Government as permitted by the Legislative Assembly of
the State. The Council, under Section 18 of Act, 1988, is guided by the
direction of the Government and the Council has also accountability
under Section 19 to the Government. The Government is entitled to
make inspection and enquiry into the works done by the State Council.
Under Section 21 of the said Act, the Government has powers to revise
any decision of the Council.
33. In view of the bifurcation of the erstwhile State of Andhra
Pradesh by Act 2014, the status and functioning has been mentioned in
Section 75 of the Act, 2014. The said Section provides as follows:
75. Continuance of facilities in certain State institutions:-
(1) The Government of the State of Andhra Pradesh or the State of
Telangana, as the case may be, shall, in respect of the institutions
specified in the Tenth Schedule to this Act, located in that State,
continue to provide facilities to the people of the other State which
shall not, in any respect, be less favourable to such people than what
were being provided to them before the appointed day, for such period
and upon such terms and conditions as may be agreed upon between
the two State Governments within a period of one year from the
appointed day or, if no agreement is reached within the said period, as
may be fixed by order of the Central Government.
(2) The Central Government may, at any time within one year from
the appointed day, by notification in the Official Gazette, specify in the
Tenth Schedule referred to in sub-section (1) any other institution
existing on the appointed day in the States of Andhra Pradesh and
Telangana and, on the issue of such notification, such Schedule shall
be deemed to be amended by inclusion of the said institution therein.
34. It would appear from the tenth schedule, this Council is
indicated at Sl.No.27.
35. Now, the core issue in these matters is as to who can claim
the ownership and control of this Council.
36. If the aforesaid Section is read carefully, it would appear, as
rightly contended by the learned Advocate General for the State of
Telangana, that the State Council, which was in existence on the
appointed day is to be and/or deemed to have been allocated to the State
of Telangana as this Council is located at Hyderabad which is a part of
the State of Telangana as mentioned in Section 3 of Act, 2014. Since the
Council comprises of land and building, it is essentially an immovable
property and it remains at a place where it is. We, therefore, usefully
reproduce this Section hereunder:
3. Formation of Telangana State:- On and from the appointed day,
there shall be formed a new State to be known as the State of
Telangana comprising the following territories of the existing State of
Andhra Pradesh, namely:-
Adilabad, Karimnagar, Medak, Nizamabad, Warangal,
Rangareddi, Nalgonda, Mahabubnagar, Khammam (but excluding
the revenue villages in the Mandals specified in G.O.Ms.No.111,
Irrigation & CAD (LA IV R&R-I) Department, dated the 27th June,
2005 and the revenue villages of Bhurgampadu,
Seetharamanagaram and Kondreka in Bhurgampadu Mandal)
and Hyderabad districts,
and thereupon the said territories shall cease to form part of the
existing State of Andhra Pradesh.
37. We are unable to accept the contention of the learned A.G.
for the State of Andhra Pradesh that since Hyderabad is a common
capital for the State of Andhra Pradesh, this Council which was in
existence prior to the appointed day would continue to remain and would
stand allocated to the State of Andhra Pradesh as its property.
38. On a fair reading of Section 5 of Act, 2014, as correctly
contended by the learned A.G. for the State of Telangana, the State of
Andhra Pradesh is a mere user of the city of Hyderabad for a maximum
period of ten years. It has no proprietary right, title and interest in this
city and none of the assets which belong to the erstwhile State of Andhra
Pradesh, located at Hyderabad, can be claimed by the State of Andhra
Pradesh except in accordance with Act, 2014. Similarly, any institutions
mentioned in the tenth schedule, situated in the territory of bifurcated
State of Andhra Pradesh will stand allocated to that State and the State
of Telangana cannot have any claim over the said property.
For example, Sri Padmavathi Mahila University, Tirupati, which is
situated in Tirupati, at Sl.No.57 of the tenth schedule, will stand
allocated exclusively to the State of Andhra Pradesh. However, despite
this legal status of the institutions mentioned in the tenth schedule, they
will continue to serve the people of the other State within which it is not
located, which will not be less favourable to such people than what were
being provided to them before the appointed day, for such period and
upon such terms and conditions as may be agreed upon between the two
State Governments within one year from the date of the appointed day.
39. At present, as far as this Council is concerned, there has
been no agreement and the period of one year is yet to be over also.
It does not appear that the Central Government has intervened in the
matter. But, it would be open for both the States to work out this issue.
40. Therefore, in this case, factually, it appears that by virtue of
G.O.Ms.No.5 dated 2.8.2014 the Government of Telangana, in exercise of
powers under Section 101 of Act, 2014, has adopted the Act, 1988 with
modification that it should be read as Andhra Pradesh State Council of
Higher Education Act (Telangana Adaptation Order), 2014. Because of
the adaptation with amendments in the eye of law, APSC has no
existence, at least in Hyderabad, or in any part of Telangana State, if
there be any branch of this office. It further appears that consequent
upon the aforesaid adaptation with amendment by G.O.Ms.No.6 dated
5.8.2014 and by G.O.Ms.No.7 dated 5.8.2014, a notification is issued for
changing composition of the body and fresh appointments of Chairman,
Vice-Chairman and other Members have also been made.
41. Under such circumstances, the assets and properties and
funds whatever lying at the present location of the APSC belong to TSC.
42. We cannot accept the contention of the learned A.G. for the
State of Andhra Pradesh that by a Government Order a statute cannot be
amended in view of the specific provision of Section101 of Act, 2014,
which reads as follows:
101. Power to adapt laws:- For the purpose of facilitating the
application in relation to the State of Andhra Pradesh or the State of
Telangana of any law made before the appointed day, the appropriate
Government may, before the expiration of two years from that day, by
order, make such adaptations and modifications of the law, whether
by way of repeal or amendment, as may be necessary or expedient, and
thereupon every such law shall have effect subject to the adaptations
and modifications so made until altered, repealed or amended by a
competent Legislature or other competent authority.
Explanation:- In this section, the expression appropriate
Government means as respects any law relating to a matter
enumerated in the Union List, the Central Government, and as
respects any other law in its application to a State, the State
Government.
43. When the Legislature has delegated this power to the
Government under the Statute itself, it is deemed to be an Act of the
Legislature. Therefore, this contention has no force at all and this
provision, if read along with Section 100 of Act, 2014, as the power of
adaptation with amendments has been expressly provided in the
aforesaid provision of law.
44. In view of the aforesaid discussion, we are constrained to
hold that the claim made by the APSC is not sustainable under law.
Of course, if there had been any branch of this APSC within the territory
of the present State of Andhra Pradesh, it might have continued to
function as a fractured and divided body. As there is none, it would be
open for the State of Andhra Pradesh to negotiate with the State of
Telangana as per provisions of Section 75 of Act, 2014, as above for
its services.
45. We therefore declare that all the bankers of the erstwhile
APSC will recognize and allow the present TSC to operate the
Bank accounts.
46. Thus, both the Writ Petitions are disposed of accordingly.
There will be no order as to costs.
Consequently, pending miscellaneous petitions, if any, shall
also stand closed.
____________________________
Kalyan Jyoti Sengupta, CJ
__________________
Sanjay Kumar, J
Dt. 01.05.2015
WRIT PETITION Nos. 1873 OF 2015
01-05-2015
The A.P. State Council of Higher Education rep., by its Secretary (FAC),
Hyderabad...Petitioner
The Union of India, rep., by Ministry of Law & Legislation and Company Affairs,
Central Secretariat Buildings, New Delhi & four others....Respondents
Counsel for petitioner : Advocate General (A.P.)
Counsel for respondent No.1: Sri B. Narayana Reddy (Asst. Solicitor General)
Counsel for respondents 2&3: Sri E. Madan Mohan
Counsel for respondents 4&5: Advocate General (TG)
<GIST:
>HEAD NOTE:
? Cases referred
1. (2006) 1 SCC 442 = AIR 2006 SC 661
2. (2014) 12 SCC 696
3. AIR 1963 SC 853
4. AIR 1970 SC 1446
5. (2006) 5 SCC 330
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.1873 & 2882 of 2015
Date: 01.05.2015
In W.P.No.1873 of 2015:
Between
The A.P. State Council of Higher Education (A statutory
Body pursuant to Legislation vide Act 16/1988), rep. by
its Secretary (FAC), 1st Floor, Opposite to Mahaveer Hospital,
Mahaveer Marg, Masab Tank, Hyderabad-500028.
Petitioner
And
1. The Union of India, rep. by Ministry of Law & Legislation
and Company Affairs, Central Secretariat Buildings,
New Delhi., and four others.
Respondents
In W.P.No.2882 of 2015:
Between
1. The State of Telangana, rep. by its Special Secretary,
GA (States Reorganization) Department, Government of
Telangana, Secretariat, Hyderabad, and another.
Petitioners
And
1. Union of India, rep. by its Secretary, Ministry of Home
Affairs (CS Division), North Block, Central Secretariat,
New Delhi., and three others.
Respondents
THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA
AND
THE HONBLE SRI JUSTICE SANJAY KUMAR
WRIT PETITION Nos.1873 & 2882 of 2015
COMMON ORDER: (Per the Honble The Chief Justice Sri Kalyan Jyoti Sengupta)
First mentioned writ petition (W.P. No.1873 of 2015)
(hereinafter referred to as first writ petition) has been filed by the A.P.
State Council of Higher Education which is a statutory body formed and
constituted under the Act called the Andhra Pradesh State Council of
Higher Education Act, 1988 (hereinafter referred to as Act, 1988)
against the Union of India, the State Bank of Hyderabad, the State of
Telangana and the Telangana State Council of Higher Education. Second
one (W.P.No.2882 of 2015) has been filed subsequently by the State of
Telangana against the Union of India, the State of Andhra Pradesh and
the A.P. State Council of Higher Education (in short, APSC).
2. The first writ petition (W.P.No.1873 of 2015) has been filed
seeking relief against the Bank who decided to stop the operation of
Bank account maintained by APSC. There would not have been any
difficulty to decide this matter on fact as well as law, had there been no
second writ petition (W.P.No.2882 of 2015) filed by the Telangana State
Council of Higher Education (hereinafter referred to as TSC). Therefore,
both the writ petitions are consolidated and heard out analogously.
3. The factual aspects of both the matters are more or less the
same, and the same is summarized as follows.
The APSC came into being on publication of Act, 1988 in the
A.P. Gazette on 21.04.1988, followed by G.O.Ms.No.199, Education
Department, dated 17.05.1988 under the provision of Section 3 of Act
1988. As such, it is a separate statutory and autonomous body having
perpetual seal and succession; and it can sue and be sued. By and
under the aforesaid Act, 1988, this Council has the exclusive authority
for conducting various common entrance examination tests namely
(i) Engineering and Medical Common Entrance Test (EAMCET) for
admission of students into Engineering, Medicine and Agriculture,
Pharmacy (ii) Integrated Common Entrance Test (ICET) for admission of
students into MBA and MCA (iii) Education Common Entrance Test
(EDCET) for admission of students into B.Ed. (Bachelor of Education)
(iv) Engineering Common Entrance Test (ECET) for admission of
Diploma holders and B.Sc., students into Engineering and Pharmacy
(v) Physical Education Common Entrance Test (PECET) for admission of
students into Physical Education Programmes (vi) Law Common
Entrance Test (LAWCET) for admission of students into 3 year and
5 year Law Course (vii) Post Graduate Law Common Entrance Test
(PGLCET) for admission of students into LLM (viii) Post Graduate
Common Entrance Test (PGCET) for admission of students into M.Tech.
and M. Pharm.
4. On 20.01.2015, by a written communication, State Bank of
Hyderabad informed that they have decided not to allow the APSC to
operate the Saving Bank A/c. Nos.521889272278 and 62009828659
maintained in Shantinagar Branch. By the said communication, it is
informed that the TSC has objected to such operation. It is asserted by
APSC that this decision of the Bank is high-handed, arbitrary and illegal.
The Bank has no authority to refuse to operate the Bank account as
there has been no garnishee order or order of the appropriate Court
restraining operation of the Bank account. It is alleged that the claim
and contention of the TSC is untenable under law.
5. In the second writ petition (W.P.No.2882 of 2015) it has
been stated that the then State of Andhra Pradesh has been bifurcated
into two States namely, State of Andhra Pradesh and State of Telangana
under the Andhra Pradesh Reorganization Act, 2014 (hereinafter referred
to as Act, 2014). Under Sections 3 & 4 of Act, 2014, with effect from the
appointed day i.e., 02.06.2014, these two States are functioning as
separate and independent States. The Act, 2014 provides for taking
various measures to effectuate smooth functioning of the two
independent States. One of the measures is the method of functioning of
the existing State institutions on and from the appointed day. The status
and functioning of the institutions mentioned in the tenth schedule of
the Act are governed by Section 75, which is under Part-II of Act, 2014.
In terms of this provision, the institutions specified in the tenth schedule
located in the State of Telangana or the State of Andhra Pradesh, as the
case may be, should continue to provide facilities to the people of the
other State i.e., the State of Andhra Pradesh from the State of Telangana
and vice versa in accordance with the provisions of this Act. Section
75 of the Act, 2014 does not provide for apportionment of assets, rights
and liabilities of the institutions between the two successor States.
These institutions specified in the tenth schedule have to work
independently in their own sphere within four corners of the law of the
land.
6. It is the settled position of law that the institutions located in
the successor States are governed by the law of the successor State-laws
of the land namely, principle of land, known as doctrine of lex situs.
7. Under Article 246 (2) & (3) of the Constitution of India, the
State Legislatures are competent to make laws in respect of their territory
covered by the entries in List-II & III of the 7th Schedule of the
Constitution. Therefore, in terms of Section 75 of Act, 2014, the
specified institutions under the tenth schedule are governed by the laws
of the respective States where they are located. Having regard to the
aforesaid legal position, the institutions specified in the tenth schedule
located in Telangana are governed by the law of the State of Telangana.
8. In exercise of the power under Section 101 of Act, 2014,
State of Telangana adopted Act, 1988, with slight modifications vide
G.O.Ms.No.5, Higher Education (UE) Department, dated 2.8.2014, so as
to govern this institution specified at Item No.27 of the tenth schedule.
Thus, the State of Andhra Pradesh has no authority to interfere in the
functioning of the organizations specified in the tenth schedule which are
located in Telangana State territory. In view of the above, the then
existing body constituted by the then State of Andhra Pradesh, prior to
formation of the State of Telangana, has no authority to function and
administer an institution located in the State of Telangana and the said
body automatically ceases to exist and accordingly, the then APSC has
no authority in respect of the institution specified at Item No.27 of the
tenth schedule. The office of the institution of petitioner No.2, formerly
known as APSC, is now situated in the State of Telangana at Hyderabad.
Therefore, the law enacted by the State of Telangana alone, necessarily,
has application for administration of the institution. Consequently, any
action taken or order now passed by the erstwhile body of the institution
specified at Item No.27 of tenth schedule is without jurisdiction and
would be ultra vires.
9. The APSC, at the instance of the State of Andhra Pradesh, is
now asserting its power and authority and physically occupying the
premises without any authority of law. The APSC is not entitled to
operate the bank accounts or withdraw any amount. Notwithstanding
the aforesaid legal status, even after 2nd June, 2014, the APSC has
withdrawn considerable amounts from the State Bank of Hyderabad,
Shantinagar Branch, in respect of the above two saving bank accounts.
As such, the petitioner No.2 wrote a letter to the State Bank of
Hyderabad and Andhra Bank for freezing of the said accounts.
Accordingly, a decision was taken by the Bank and rightly so.
10. In the second writ petition (W.P.No.2882 of 2015), in the
aforesaid background, declaratory reliefs on the above lines have been
sought by the State of Telangana, being one of the petitioner, against the
State of Andhra Pradesh, which is one of the respondents.
11. Counter-affidavit has been filed to this writ petition
(W.P.No.2882 of 2015) by the APSC taking a legal objection that the
reliefs claimed by the State of Telangana against the State of Andhra
Pradesh cannot be maintained by way of this writ petition in view of the
provisions of Article 131 of the Constitution of India. That apart, in the
counter-affidavit, it is stated that on bifurcation of the State on
commencement of Act, 2014, the status of APSC, as claimed by the writ
petitioner, is disputed and denied. According to the APSC, it is fully
entitled to function as such, operate the existing Bank accounts as was
being done before the bifurcation and the provisions of Section 75 of Act,
2014 have no legal impact, since Hyderabad is a common capital for both
the States.
12. The learned Advocate General for the State of Andhra
Pradesh, while submitting on the question of maintainability of the
second writ petition (W.P.No.2882 of 2015), wherein the State of
Telangana is the petitioner and the State of Andhra Pradesh is a
respondent, contends that the relief Nos.3 & 4 claimed are not at all
entertainable and further adjudicatable by this Court as the same relate
to the claim and contention and rival contentions between the two States
with regard to assets and properties.
13. Article 131 of the Constitution of India is the only remedy
and the forum mentioned therein is the only forum for adjudication of
such disputes. While referring to Article 300 of the Constitution of India,
he says that both the States are sui juris and they can sue and be sued,
the meaning and expression of the State as mentioned in Article 131 is
not synonymous with that as mentioned in Article 12 or 226 of the
Constitution of India. The phraseology, namely, to the exclusion of any
other Court mentioned in Article 131 is clear enough to indicate that this
Court has no jurisdiction. In support of his submission, he has placed
reliance on the decisions of the Supreme Court in Tashi Delek Gaming
Solutions Limited v. State of Karnataka and State of Tamil Nadu v. State
of Kerala .
14. On the point of maintainability, the learned Advocate
General for the State of Telangana submits that the bar under Article
131 will be applicable when one State sues exclusively the Union of India
or any other State. If there is any involvement of third parties in any
action, the above bar is not at all applicable, like the present one. In
support of his submission on this point, he has placed reliance on the
judgments of the Supreme Court reported in Tashi Delek Gaming
Solutions Limited v. State of Karnataka (1 supra), Anant Prasad
Lakshminiwas Ganeriwal v. State of A.P. , The State of Bihar v. The Union
of India and Nautam Prakash DGSVC, VADTAL v. K.K. Thakkar .
15. However, on merits, the learned Advocate General for the
State of Andhra Pradesh submits that, if the above two reliefs are
excluded, this writ petition can be maintained in that case and it is
possible for this Court to decide the matter.
16. The learned Advocate General for the State of Andhra
Pradesh submits on merits after placing the fact that the State of
Telangana and the TSC are aware of the details of the funds, if any, the
petitioner Council is also very much aware that the funds are in tact in
the form of Fixed Deposits in the Banks located in Hyderabad only. In
this regard, reference is made to the letter dated 5.9.2014 addressed by
the Telangana Government to the Government of Andhra Pradesh
seeking bifurcation of the staff and available funds. Act of adaptation by
G.O.Ms.No.5 dated 2.8.2014 to G.O.Ms.No.33 dated 31.12.2014 would
amount to amendment of the Act, 1988. Hence, such amendment is not
valid in law for the reason that APSC still remains as an independent
statutory body, which is functioning at the common capital of Hyderabad
till it is bifurcated as per the procedure laid down under Section 75 of
Act, 2014. He contends that the Telangana Government has adopted
Act, 1988 and Regulations issued thereunder under Section 101 of Act,
2014, to create the 5th respondent Council vide G.O.Ms.No.5 dated
2.8.2014 with effect from 2.6.2014 for the purpose of facilitating its
operation in relation to the State of Telangana and not otherwise. The
very adaptation of the Act under Section 101 of Act, 2014 is not
applicable to those institutions specified in the tenth schedule under
Section 75 of Act, 2014 till the procedure contemplated under Section
75 of Act, 2014, which mandates either the continuation of the
institutions for the people of both the States beyond one year or deletion
of such institutions from the tenth schedule depends upon the decision
of the 1st respondent Government and the same is binding on both the
Governments. The procedure contemplated under Act, 2014 for ninth
schedule institutions is distinct and different and the same cannot be
compared with tenth schedule institutions. The adaptation of the APSC,
which is listed in the tenth schedule, creating a parallel one being TSC
invoking Section 101 of Act, 2014 is contrary to the procedure laid down
under Section 75 of Act, 2014.
17. He contends further that APSC is located in a common
capital for both the States of Andhra Pradesh and Telangana for a period
not exceeding ten years, as per Section 5 of Act, 2014. Therefore,
Telangana Government, having created TSC, cannot now claim territorial
jurisdiction exclusively over APSC, which is a specified institution in the
tenth schedule under Section 75 of Act, 2014, without going through the
due process mandated under the said Act. Thus, the words located in
that State mentioned in Section 75 of Act, 2014 means to facilitate the
services to the people of other States by the institutions specified in the
tenth schedule.
18. The question of TSC becoming a successor organization to
the petitioner Council would only happen as and when APSC is
bifurcated as per law laid down in Sections 75 & 79 of Act, 2014. Thus,
as long as APSC is listed in the tenth schedule under Section 75 of Act,
2014, the question of TSC taking its place as a successor organization
does not arise since Section 101 of Act, 2014 is permissive in general,
but adaptation of the institution specified in the tenth schedule under
Section 75 of the aforesaid Act, 2014 i.e., lock, stock and barrel, is
impermissible and void in law.
19. The Circular dated 30.10.2014 addressed to the various
Banks requesting to stop withdrawals cannot be made applicable to
tenth schedule institutions for the reason that the Act, 2014 does not
provide any procedure for division of funds of tenth schedule
institutions. Therefore, applying the said Circular and freezing the
accounts of the petitioner Council by the 2nd & 3rd respondent Banks is
totally erroneous and illegal. Therefore, the question of disputes of
funds between the States of Telangana and Andhra Pradesh does not and
cannot arise, without bifurcation of the APSC. Therefore, freezing of the
accounts based on a letter written by the Bank on 8.1.2015 under the
guise of the Circular dated 30.10.2014 is totally illegal and amounts to a
collusive act of the Bank with the State of Telangana.
20. The learned Advocate General appearing for the State of
Telangana submits that APSC, Hyderabad is an institution constituted
under sub-section (1) of Section 3 of Act, 1988 and the said institution
was defined under clause (e) of Section 2 of Act, 1988. It is submitted
that sub-section (3) of Section 3 of Act, 1988 provides that the
headquarters of the State Council shall be located at Hyderabad. The
said institution was constituted with an object to advise the State
Government and set standards of Higher Education, etc., as set out in
the objectives of Act, 1988. The said Council has been functioning since
1988 onwards in Hyderabad and it has no other sub-offices or branch
offices in the then existing State of Andhra Pradesh, except Hyderabad.
The said Council was specified and included in the tenth schedule of the
Act under Section 75 of Act, 2014. The institutions listed in the tenth
schedule shall continue to provide facilities to the people of other State
even after bifurcation of the State on certain terms and conditions as
may be agreed between the two States. There is no partition provided in
respect of the institutions specified in the tenth schedule except
providing service. Undisputedly, since the institution is located in
Hyderabad, the institution will be governed by the law of the land, known
as the doctrine of lex situs. In terms of the doctrine of lex situs, all the
rights over or in relation to any institutions are governed by the law of
that State where the said institution is located. In this context, he
referred to a decision of the Supreme Court in case of Anant Prasad
Lakshminiwas Ganeriwal v. State of A.P. (3 supra). The territory of
Hyderabad District is included in the State of Telangana under Section 3
of Act, 2014. The State of Andhra Pradesh is entitled to locate its
headquarters in the Hyderabad city for a period not exceeding ten years,
but it is not given any right over the territory or its law making power or
administration. Section 75 of Act, 2014 clearly states that the
institutions located in that State would extend the services to other State
on such terms and conditions of agreement. The State of Telangana was
formed with effect from 2.6.2014. Thereafter, Act, 1988 was adapted in
the name and style of Telangana State Council of Higher Education Act
under Section 101 of Act, 2014 vide G.O.Ms.No.5 dated 2.8.2014.
Pursuant to the said adaptation, a new Council was constituted for Item
No.27 of the tenth schedule, known as the Telangana State Council of
Higher Education. In view of the same, the State of Andhra Pradesh or
its Higher Education Council has no authority over the said institution.
Thus, the State of Telangana and its enacted law will have application
over the said institution. Act, 2014 provided for the ownership of the
institution on territorial basis located in the respective territory and there
is no division of assets and liabilities of the institutions listed in the tenth
schedule. He submits further that under Sections 68 & 71 of Act, 2014,
even the State Government Companies and Corporations are allowed to
continue on territorial basis as owners except State headquarters which
are existing State-wide operations.
21. He concluded that neither the State of Andhra Pradesh nor
the Council constituted by the erstwhile State of Andhra Pradesh can
have any control, authority or function over the State Council and
operate the Bank accounts of the A.P. State Council of Higher Education
located in Hyderabad.
22. After considering the submissions and contentions of both
the parties, we feel that it is incumbent upon us to decide the
preliminary objection raised by the learned Advocate General for the
State of Andhra Pradesh whether the reliefs, being prayer Nos.3 & 4, in
W.P.No.2882 of 2015 can be entertained by this Court or not. In other
words, whether the provisions of Article 131 of the Constitution of India,
which reads as follows, is a bar or not?
131. Original jurisdiction of the Supreme Court:- Subject to the
provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any
dispute
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one
side and one or more other States on the other; or
(c) between two or more States,
if and insofar as the dispute involves any question (whether of law or
fact) on which the existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute
arising out of any treaty, agreement, covenant, engagement, sanad or
other similar instrument which, having been entered into or executed
before the commencement of this Constitution, continues in
operation after such commencement, or which provides that the said
jurisdiction shall not extend to such a dispute.
23. On a plain reading of Article 131 of the Constitution of India,
it appears, without any doubt, that the Supreme Court has original
jurisdiction to entertain a lis with regard to the disputes between the
Government of India on one hand and one or more States on the other,
or between the Government of India and any State or States on one side
and one or more other States on the other, or between two States and
this dispute relates to any question whether on fact or law which the
existence or extent of a legal right of the aforementioned disputants
depends.
24. Therefore, it postulates the legal right of the two parties
mentioned above and not that of any other third party. In other words, a
fight between two States to establish any legal right based on fact and
law can be decided by the Supreme Court alone and in that situation, it
clearly ousts the jurisdiction of other Courts.
25. According to us, in order to apply the aforesaid
Constitutional bar, the fact of the lis and claim and contention in
substance, involved therein must confine to the two States exclusively,
not involving nor referring to any third party. As it is rightly argued by
the learned A.G. for the State of Telangana, the word State mentioned
in Article 131 of the Constitution of India is to be construed in strict
sense viz., sovereign State, not that of as mentioned in wider sense in
Article 12 of the Constitution of India.
26. On a reading of both the writ petitions, it appears to us that
the APSC is a separate legal entity and it has been constituted by and
under the Act, 1988 and by this writ petition, the aforesaid Council has
claimed funds lying in the Bank in its name. It appears that the TSC is
also a separate legal entity. Therefore, these mutual but rival rights and
claims are really sought to be established merely by both the two
separate statutory bodies viz., of the State of Andhra Pradesh and the
State of Telangana after being created by making appropriate legislation
either by original or by way of adaptation of original.
27. Hence, we do not think that these two writ petitions are in
the real sense a fight between two independent States as contemplated
under Article 131 of the Constitution of India.
28. As far as the reliefs mentioned in 3 & 4 in W.P.No.2882 of
2015 are concerned, the same are merely surplusage and can safely be
excluded. We, therefore, delete the same. Consequently, we hold that
the later writ petition is also maintainable.
29. We now proceed to decide the claims and contentions
on merit.
30. In these two matters, there is no dispute as regards factual
aspects and the same are briefly stated hereinafter. The APSC came into
existence by and under the Act, 1988 by virtue of Section 3 of this Act.
The said Section is set out hereunder:
3. Constitution of State Council of Higher Education:-
(1) The Government may, by notification, and with effect on
and from such date as may be specified in this behalf, constitute a
State Council for the purpose of this Act to be called the Andhra
Pradesh State Council of Higher Education.
(2) (a) The State Council shall be a body corporate having
perpetual succession and a common seal and shall sue and be sued by
the said corporate name.
(b) In all suits and other legal proceedings by or against the
State Council the proceedings shall be signed and verified by the
Secretary and all processes in such suits and proceedings shall be
issued to and served on the Secretary.
(3) The Headquarters of the State Council shall be located
at Hyderabad.
31. Thus, it is clear that this Council is a statutory body and it
has an independent legal character from that of the Government
functioning. It seems to us that the statutory body was intended to be
created to give autonomy with regard to maintaining, promoting and
improving standards of higher education. The composition of the
Council is provided under Section 4 of the Act, 1988. The said Section
reads as follows:
4. Composition of the State Council:- (1) The State Council shall
consist of the following members, namely:
I. Full Time Members:
(i) a Chairman; and
(ii) a Vice-Chairman,
to be appointed by the Government from among eminent educationists.
II. Ex-Officio Members:
(i) the Secretary to Government, Education Department;
(ii) the Secretary to Government, Finance Department;
(iii) the Secretary to Government, Labour, Employment and Technical
Education:
(iv) the Secretary or any other officer of the University Grants
Commission not below the rank of a Joint Secretary nominated by the
Chairman, University Grants Commission.
III. Other Members:
(i) four persons to be appointed by the Government from among
eminent educationists;
(ii) one person who shall represent the industry to be appointed by the
Government:
(iii) three persons of whom one shall be a technical expert, to be
nominated by the State Government.
(2) Every appointment under this section shall take effect from the date
on which it is notified by the Government.
32. It further appears that this Council under the Act has to get
grants from the Government as permitted by the Legislative Assembly of
the State. The Council, under Section 18 of Act, 1988, is guided by the
direction of the Government and the Council has also accountability
under Section 19 to the Government. The Government is entitled to
make inspection and enquiry into the works done by the State Council.
Under Section 21 of the said Act, the Government has powers to revise
any decision of the Council.
33. In view of the bifurcation of the erstwhile State of Andhra
Pradesh by Act 2014, the status and functioning has been mentioned in
Section 75 of the Act, 2014. The said Section provides as follows:
75. Continuance of facilities in certain State institutions:-
(1) The Government of the State of Andhra Pradesh or the State of
Telangana, as the case may be, shall, in respect of the institutions
specified in the Tenth Schedule to this Act, located in that State,
continue to provide facilities to the people of the other State which
shall not, in any respect, be less favourable to such people than what
were being provided to them before the appointed day, for such period
and upon such terms and conditions as may be agreed upon between
the two State Governments within a period of one year from the
appointed day or, if no agreement is reached within the said period, as
may be fixed by order of the Central Government.
(2) The Central Government may, at any time within one year from
the appointed day, by notification in the Official Gazette, specify in the
Tenth Schedule referred to in sub-section (1) any other institution
existing on the appointed day in the States of Andhra Pradesh and
Telangana and, on the issue of such notification, such Schedule shall
be deemed to be amended by inclusion of the said institution therein.
34. It would appear from the tenth schedule, this Council is
indicated at Sl.No.27.
35. Now, the core issue in these matters is as to who can claim
the ownership and control of this Council.
36. If the aforesaid Section is read carefully, it would appear, as
rightly contended by the learned Advocate General for the State of
Telangana, that the State Council, which was in existence on the
appointed day is to be and/or deemed to have been allocated to the State
of Telangana as this Council is located at Hyderabad which is a part of
the State of Telangana as mentioned in Section 3 of Act, 2014. Since the
Council comprises of land and building, it is essentially an immovable
property and it remains at a place where it is. We, therefore, usefully
reproduce this Section hereunder:
3. Formation of Telangana State:- On and from the appointed day,
there shall be formed a new State to be known as the State of
Telangana comprising the following territories of the existing State of
Andhra Pradesh, namely:-
Adilabad, Karimnagar, Medak, Nizamabad, Warangal,
Rangareddi, Nalgonda, Mahabubnagar, Khammam (but excluding
the revenue villages in the Mandals specified in G.O.Ms.No.111,
Irrigation & CAD (LA IV R&R-I) Department, dated the 27th June,
2005 and the revenue villages of Bhurgampadu,
Seetharamanagaram and Kondreka in Bhurgampadu Mandal)
and Hyderabad districts,
and thereupon the said territories shall cease to form part of the
existing State of Andhra Pradesh.
37. We are unable to accept the contention of the learned A.G.
for the State of Andhra Pradesh that since Hyderabad is a common
capital for the State of Andhra Pradesh, this Council which was in
existence prior to the appointed day would continue to remain and would
stand allocated to the State of Andhra Pradesh as its property.
38. On a fair reading of Section 5 of Act, 2014, as correctly
contended by the learned A.G. for the State of Telangana, the State of
Andhra Pradesh is a mere user of the city of Hyderabad for a maximum
period of ten years. It has no proprietary right, title and interest in this
city and none of the assets which belong to the erstwhile State of Andhra
Pradesh, located at Hyderabad, can be claimed by the State of Andhra
Pradesh except in accordance with Act, 2014. Similarly, any institutions
mentioned in the tenth schedule, situated in the territory of bifurcated
State of Andhra Pradesh will stand allocated to that State and the State
of Telangana cannot have any claim over the said property.
For example, Sri Padmavathi Mahila University, Tirupati, which is
situated in Tirupati, at Sl.No.57 of the tenth schedule, will stand
allocated exclusively to the State of Andhra Pradesh. However, despite
this legal status of the institutions mentioned in the tenth schedule, they
will continue to serve the people of the other State within which it is not
located, which will not be less favourable to such people than what were
being provided to them before the appointed day, for such period and
upon such terms and conditions as may be agreed upon between the two
State Governments within one year from the date of the appointed day.
39. At present, as far as this Council is concerned, there has
been no agreement and the period of one year is yet to be over also.
It does not appear that the Central Government has intervened in the
matter. But, it would be open for both the States to work out this issue.
40. Therefore, in this case, factually, it appears that by virtue of
G.O.Ms.No.5 dated 2.8.2014 the Government of Telangana, in exercise of
powers under Section 101 of Act, 2014, has adopted the Act, 1988 with
modification that it should be read as Andhra Pradesh State Council of
Higher Education Act (Telangana Adaptation Order), 2014. Because of
the adaptation with amendments in the eye of law, APSC has no
existence, at least in Hyderabad, or in any part of Telangana State, if
there be any branch of this office. It further appears that consequent
upon the aforesaid adaptation with amendment by G.O.Ms.No.6 dated
5.8.2014 and by G.O.Ms.No.7 dated 5.8.2014, a notification is issued for
changing composition of the body and fresh appointments of Chairman,
Vice-Chairman and other Members have also been made.
41. Under such circumstances, the assets and properties and
funds whatever lying at the present location of the APSC belong to TSC.
42. We cannot accept the contention of the learned A.G. for the
State of Andhra Pradesh that by a Government Order a statute cannot be
amended in view of the specific provision of Section101 of Act, 2014,
which reads as follows:
101. Power to adapt laws:- For the purpose of facilitating the
application in relation to the State of Andhra Pradesh or the State of
Telangana of any law made before the appointed day, the appropriate
Government may, before the expiration of two years from that day, by
order, make such adaptations and modifications of the law, whether
by way of repeal or amendment, as may be necessary or expedient, and
thereupon every such law shall have effect subject to the adaptations
and modifications so made until altered, repealed or amended by a
competent Legislature or other competent authority.
Explanation:- In this section, the expression appropriate
Government means as respects any law relating to a matter
enumerated in the Union List, the Central Government, and as
respects any other law in its application to a State, the State
Government.
43. When the Legislature has delegated this power to the
Government under the Statute itself, it is deemed to be an Act of the
Legislature. Therefore, this contention has no force at all and this
provision, if read along with Section 100 of Act, 2014, as the power of
adaptation with amendments has been expressly provided in the
aforesaid provision of law.
44. In view of the aforesaid discussion, we are constrained to
hold that the claim made by the APSC is not sustainable under law.
Of course, if there had been any branch of this APSC within the territory
of the present State of Andhra Pradesh, it might have continued to
function as a fractured and divided body. As there is none, it would be
open for the State of Andhra Pradesh to negotiate with the State of
Telangana as per provisions of Section 75 of Act, 2014, as above for
its services.
45. We therefore declare that all the bankers of the erstwhile
APSC will recognize and allow the present TSC to operate the
Bank accounts.
46. Thus, both the Writ Petitions are disposed of accordingly.
There will be no order as to costs.
Consequently, pending miscellaneous petitions, if any, shall
also stand closed.
____________________________
Kalyan Jyoti Sengupta, CJ
__________________
Sanjay Kumar, J
Dt. 01.05.2015
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.